m.v. OCEAN ENVOY AND ANOTHER v. AL-LINSHIRAH BULK CARRIERS LTD

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CA
m.v. “Ocean Envoy" and Another v.
Al-Linshirah Bulk Carriers Ltd.
337
m.v. "OCEAN ENVOY" AND ANOTHERv.
AL-LINSHIRAH BULK CARRIERS LTD
COURT OF APPEALKULATILAKE, J. ANDFERNANDO, J.
CALA NO. 02/99ACTION IN REM NO. 47/96AUGUST 22, 2001NOVEMBER 08, 2001
Admiralty Jurisdiction Act, No. 40 of 1983 – Section 12 – Rules thereunder -Judicature Act, No. 2 of 1978 – S. 13 (1) and 48 – Trial concluded – New Judge- Application to have trial de Novo – Applicable Law when the Act and EnglishLaw is silent – Cassus omissus.
Action was instituted in the High Court of Colombo invoking its admiralty jurisdictionto recover a certain sum and arrest of the ship as security in respect of detentiondue to the plaintiff-respondent. After the evidence was concluded the High CourtJudge was elevated as a Judge of the Court of Appeal. On an application madefor a trial de novo, the High Court dismissed the application for trial de novo,stating that the whole case rests on documents.
On leave being sought –
Held:
The Law relating to Admiralty matters is contained exclusively in theAdmiralty Jurisdiction Act and the Rules set out in the Government GazetteNo. 672/7 of 24. 07. 1991.
Section 12 provides that where there is no provision or inadequate provisionin the Act, the Admiralty Court shall have the power to make such order/directions for which the Court exercising admiralty jurisdiction in Englandhad power to make.
If the Act is silent and if there is no provision in the Law of England forde novo trials specially when the trial has been concluded, it is for theJudge of the Admiralty Court to use his judicial discretion and decidewhether an application for a trial de novo should be allowed or not.
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Sri Lanka Law Reports
[2002] 2 Sri LR.
The evidence rests mainly or if not wholly on documents and as suchdemeanour and deportment of the witnesses will have no bearing on theadjudication of the case.
APPLICATION for Leave to Appeal from an order of the High Court of Colombo,exercising Admiralty Jurisdiction.
Case referred to :
1. Elcara S. A. v. Oilborne Shipping Co. Inc (1978-79) 2 SLR 293.
Shibly Aziz, PC with Mrs. P. Gunaratne, for appellants.
N. Sinnethamby with S. Phillips for respondent.
Cur. adv. vutt.
January 04, 2002
P. H. K. KULATILAKE, J.
Action was instituted in the High Court of Colombo invoking itsadmiralty jurisdiction to recover a sum of US $ 142,164.29 and arrestthe ship m.v. “OCEAN ENVOY" as security in respect of detentiondue to the plaintiff-respondent at the Port of Marmugoa in respectof the vessel “CHKALOVSK" and interest at the rate of 5% from5 July, 1992.
Pleadings were filed by the plaintiff-respondent as well as thedefendants-appellants and thereafter trial went on for a number ofdates namely, 3rd, 5th and 8th September, 1997, 21st Junuary and26th February, 1998.
At the trial Zahid Shafeek Vohra, Director of the plaintiff-respondentwho had come all the way from the United Kingdom had givenevidence on behalf of the plaintiff-respondent. There was a lengthycross-examination of this witness by the counsel for the defendants-appellants. Mohamed Hardis, Manager I & C gave evidence on behalf
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CA
m.v. “Ocean Envoy" and Another v.
Al-Linshlrah Bulk Carriers Ltd. (Kulatllake, J.)
339
of the defendants-appellants. After the evidence was concluded writtensubmissions had been tendered by both parties. Shortly thereafter,the learned High Court Judge who had heard the evidence waselevated as a Judge of the Court of Appeal. Thereafter, the case wastaken up for oral submissions of counsel before the High Court Judgewho succeeded the earlier Judge who heard the evidence.20
When the case was taken up for oral submissions, counsel forthe defendants-appellants moved for a trial De Novo in terms of section48 of the Judicature Act. Since the learned counsel for the plaintiff-respondent objected, the learned High Court Judge had directed bothparties to file written submissions. In their written submissions theplaintiff-respondent has objected to the application for trial De Novoand moved Court to act on the evidence already recorded by hispredecessor. The learned Judge having considered the submissionsmade by both parties was of the view that since the whole case restson documents for the reason that the claim arising out of the charter 30party has to be determined on the documentary evidence and nouseful/fruitful purpose would be achieved by summoning witnessesand commencing the proceedings afresh.
The learned High Court Judge giving reasons delivered the orderdated 18 December 1997, dismissing the defendants-appellants'application for a trial De Novo. Leave to appeal and stay order ofthe High Court of Colombo in Rem 47/96 was granted by this Court.
At the argument before us counsel appearing for both parties filed. their written submissions and thereafter oral submissions were madeon 08 November, 2001. The learned President's Counsel for the 40defendants-appellants submitted that Admiralty Jurisdiction is vestedin the High Court by the Judicature Act, No. 2 of 1978 and severalprocedural provisions pertaining to the said admiralty jurisdiction areenumerated in the same Act. Admiralty Jurisdiction is vested in theHigh Court by secton 13 (1) in the following terms:
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Sri Lanka Law Reports
[2002] 2 Sri L.R.
“Admiralty Jurisdiction is hereby vested in the High Court andshall ordinarily be exercised by a Judge of the High Court sittingin the judicial zone of Colombo.”
Section 13 (3) of the Judicature Act provides for the manner inwhich appeals may be preferred from an order made in the exerciseof Admiralty Jurisdiction to the Court of Appeal. It reads thus:
"Every appeal to the Court of Appeal and every application forleave to appeal shall be made as nearly as may be inaccordance with the procedure prescribed in the Civil ProcedureCode.”
Therefore, the counsel's position was that the proviso to section48 of the Judicature Act will apply and either party may demand thatthe witness be resummoned and reheard in which case the trial shallcommence afresh.
However, the learned counsel for the plaintiff-respondent submittedthat the Judicature Act, No. 2 of 1978 only provides for the admiraltyjurisdiction to be vested in the High Court of Colombo and the mannerin which appeals should be made from an order of the High CourtJudge to the Court of Appeal. The law relating to admiralty mattersis contained exclusively in the Admiralty Jurisdiction Act,No. 40 of 1983 and the rules set out in Gazette ExtraordinaryNo. 672/7 dated 24th July, 1991. If one goes outside, it is to invokethe English Law rules of procedure which is specifically provided for,by section 12 of the Admiralty Jurisdiction Act, No. 40 of 1983. Thatsection provides that where there is no provision or inadequate provisionin the Act No. 40 of 1983 the Admiralty Court shall have the powerto make such order and directions for which the Court exercisingadmiralty jurisdiction in England had power to make as long as isnot inconsistent with any provisions made under the Act or otherenactment or any rule.
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6003
70 0*
CA
m.v. “Ocean Envoy" and Another v.
Al-Unshirah Bulk Carriers Ltd. (Kulatilake, J.)
341
In Elarca S.A. v. Oilborne Shipping Co. Inc.m Tambiah, J. observedat page 298-
"It seems to me that the admiralty courts were exercising aspecial Jurisdiction and admiralty prceedings had a special procedureof its own."so
At page 303 he went on to say –
"It would seem that none of the provisions of the CivilProcedure Code are made applicable to admiralty proceedingsin the High Court (Admiralty Jurisdiction)."
Having considered the submissions made by both counsel we areof the view that submissions made by counsel for the plaintiff-respondentshould succeed. Therefore, in case where there is cassus omissusthe Admiralty Court should look into the power to make such ordersand directions which the Court exercising admiralty jurisdiction inEngland had as long as it is not inconsistent with any provisions made 90under Act No. 40 of 1983.
The learned counsel for the plaintiff-respondent further submittedthat there is no provision in the Laws of England to provide forDe Novo trials specially when the trial has been concluded andjudgment is to be pronounced.
In the absence of any provision for trial De Novo in a situationlike this either in the provisions of the Admiralty Jurisdiction Act,
No. 40 of 1983 and its rules or the Laws of England, it is for theJudge of the Admiralty Court to use his judicial discretion and decidewhether an application for a trial De Novo should be allowed or not 100in the attendant circumstances of the case.
The counsel appearing for the plaintiff-respondent submitted toCourt that the evidence of witness Zahid Shafeek Vohra rest mainly
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[2002} 2 Sri LR.
or if not wholly on documents and as such the demeanour anddeportment of the witness will have no bearing on the adjudicationof this case. Further, learned counsel submitted that great hardshipsand financial commitments will have to be borne by the plaintiff-respondent, if this witness is to be resummoned to give evidence.Since all the documents and the evidence relating to the documentsare available on record no prejudice would be caused to the defendants-appellants by the Court adopting the proceedings and continue withthe case. In fact, the learned Judge has given his mind to thesematters. It is to the following effect:
"Unlike in a criminal case or any other case where the issuecan be decided not only on oral evidence but also on the demeanourof witnesses, this case appears to be dependent on the abovedocuments."
In the circumstances we see no reason to interfere with the ordermade by the learned High Court Judge dated 18 December, 1997.Hence, we proceed to dismiss the appeal.
FERNANDO, J. – I agree.
Application dismissed.
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